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Court reprimands Judge Kinsey for campaign rhetoric.

The First Amendment did not protect Escambia County Judge Patricia Kinsey when her campaign tactics included blasting her incumbent opponent on the radio as soft on criminals and passing out brochures declaring herself a pro-law enforcement candidate - including posing with 10 heavily armed police officers with the caption "Who do these guys count on to back them up?"

In a January 30 opinion (case No. SC96629), the Supreme Court agreed with the Judicial Qualifications Commission that Kinsey, who was elected in 1998, deserves to be sanctioned with a public reprimand and $50,000 fine for violating Florida Judicial Code of Judicial Conduct, Canon 7, that "a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views.

"While our judicial code does not prohibit a candidate from discussing his or her philosophical beliefs, in the campaign literature at issue, Judge Kinsey pledged her support and promised favorable treatment for certain parties and witnesses who would be appearing before her (i.e., police and victims of crime). Criminal defendants and criminal defense attorneys could have a genuine concern that they will not be facing a fair and impartial tribunal. We do not find that these types of pledges and statements by a judicial candidate are protected by the First Amendment," the court's majority said.

"Judge Kinsey's campaign materials gave the misleading impression that a judge's role in criminal proceedings is to combat crime and support police officers, as opposed to being an impartial tribunal where justice is dispensed without favor or bias."

The justices all agreed that Kinsey's prosecution-leaning campaign tactics went far beyond what is acceptable in maintaining public trust in the independence of the judiciary, but there was wide disagreement on the appropriate punishment she deserves.

In the end, a majority of the justices -- Chief Justice Harry Lee Anstead, Justice Barbara Pariente, and Senior Justices Leander Shaw and Major Harding -- agreed with the middle ground recommendation from the JQC: stand before the court for a public reprimand, pay a $50,000 fine, and pay the costs of these proceedings, in the hope it will send a strong message to future judicial candidates that such behavior will not be tolerated.

But Justice Fred Lewis said Kinsey should be removed from office because he fears to do otherwise sends a message that if candidates are willing to pay a fine, they can buy an election.

"Selecting an enormous fine as discipline only sends the message that 'anything goes' in judicial elections if a candidate has the financial ability to pay the money consequences.

"Indeed, in this era in which many judicial candidates in Florida are able to produce significant campaign funds from donations or personal assets, there may come a day when candidates simply maintain monetary reserves to pay fines following the election, and then only the economically powerful can successfully compete in the election process," Justice Lewis wrote in his dissent.

"Judges should not pledge to be prosecutors or defense attorneys; they should pledge to administer the law neutrally and justly. In the final analysis, the essential question here is whether the parent of a child who has been wrongly accused of a crime could walk into a courtroom and look to Judge Kinsey with confidence that his or her child would be fairly treated and given justice in her courtroom. After hearing Judge Kinsey's radio interview and reading the campaign literature at issue, the clear answer is no."

On the other end of the spectrum, a dissent from Justice Charles Wells, in which Justice Peggy Quince concurred, the conclusion was that Kinsey was guilty of material misrepresentations in two charges that deserved only a public reprimand.

As for the other charges, Wells wrote, the JQC's findings of guilt are in direct conflict with a recent U.S. Supreme Court decision in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002), that held a judge or judicial candidate may "announce positions" on matters, while not declaring Florida's "pledge or promises clause" unconstitutional.

That was Kinsey's defense - that her campaign speech was protected by the First Amendment and she relied upon that recent USSC case that found a judge could still be impartial even though he or she had expressed his or her view on an issue.

In its opinion, the USSC emphasized that the "announce cause" was separate from the "pledges and promises clause," since Minnesota adopted a separate canon which prohibited a candidate from promising or pledging to act in a certain manner.

In addressing Kinsey's defense, the majority said that in contrast to White, Florida does not have an "announce clause," but instead adopted a more narrow Canon 7A(3)(d)(i)-(ii), and in the "commentary, stresses the concept that 'a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views.'"

"A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens.

"Likewise, it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which was heading to court," the opinion said.

"As is clear from the canons and related commentary, a candidate may state his or her personal views, even on disputed issues. However, to ensure that the voters understand a judge's duty to uphold the constitution and the laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law."

The opinion made it clear that Kinsey has not been accused of acting other than impartially to all litigants while on the bench, but that she violated Canon 7 when she:

* Distributed campaign literature titled, "Pat Kinsey: The Unanimous Choice of Law Enforcement for County Judge," and another one titled "If You Are a Criminal, You Probably Won't Want to Read This," in which she stated "police officers expect judges to take their testimony seriously and to help law enforcement by putting criminals where they belong.., behind bars" and that "Pat Kinsey believes a judge should protect victims of crime."

* Distributed campaign literature in which she said "a judge should protect victims' rights" and judges must support "hardworking law enforcement officers by putting criminals behind bars, not on our streets."

* Distributed campaign literature titled "A Vital Message from Law Enforcement," saying that "victims have a right to expect judges to protect them by denying bond to potentially dangerous offenders."

* Said during a radio interview that Judge Bill Green, a former defense attorney, is "still in the defense mode" and "either dismisses a case or minimizes it by not holding the criminals accountable."

The JQC panel found that Kinsey was "guilty as charged of cloaking her entire candidacy in the umbrella of law enforcement and portraying herself as a future pro-prosecution/pro-law enforcement judge while characterizing her opponent as dismissing criminals and not holding them accountable."

The Supreme Court found that "although some of these charges taken in isolation would not violate the judicial canons, taken together it becomes clear that Judge Kinsey is running on a platform which stressed her allegiance to police officers. Each of the charges addressed above involved implicit pledges that if elected to office, Judge Kinsey would help law enforcement."

In a specially concurring opinion, Chief Justice Anstead cited testimony from U.S. District Judge Lacey Corner, of the Northern District of Florida, who responded to Kinsey's comments that a judge's responsibility is to make sure "that it's absolutely the reflection of what the community wants."

'That is an absolute misstatement of the role of the judiciary," Judge Corner testified.

"It is simply not appropriate that a judge reflect what the community wants. And I think the best example of that is the old concept that a lynch mob is the perfect democracy for everyone except the victim. And that is probably the strongest way of suggesting that this is grossly improper, to make that statement and make that the expectation of the public."
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Author:Pudlow, Jan
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Feb 15, 2003
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